Baltimore Sun: MD police seek easier wiretaps

[John Gilmore]

http://www.sunspot.net/news/custom/guns/bal-wiretap03.story?coll=bal-home-headlines 

Md. police seek law for easier wiretaps
Use of technology by criminals outruns current authority
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By Sarah Koenig
Sun Staff
Originally published January 2, 2002, 9:16 PM EST

Aware that police might be eavesdropping, drug dealers not only watch 
what they say on their cell phones. They "burn" their phones, and "bust" 
them. They create phantom phone numbers and treat a handset the way a 
tourist might treat a disposable camera, discarding it after a few good 
shots.

As prosecutors and detectives in Baltimore increase the use of wiretaps 
against major drug organizations, they have discovered that their 
targets' phone capabilities outpace their own.

To catch up, law enforcement officials from across Maryland are 
proposing legislative changes that would expand and simplify the use of 
wiretaps.

A principal objective is to be able to quickly switch a wiretap from 
phone to phone, mirroring a suspect's maneuvers.

"Over the last couple of years, as we've been doing more of these 
wiretap investigations, we've come face to face with what the 
shortcomings are," said city State's Attorney Patricia C. Jessamy, who 
will hold a news conference on the issue today.

But efforts to streamline the wiretap application process, which is now 
closely re viewed by a judge, are sure to meet some opposition in the 
General Assembly from the American Civil Liberties Union, among others.

"There is reason to be concerned that the police will become Big 
Brother," said Maryland ACLU spokesman Dwight Sullivan. "We want police 
to be aggressive in fighting crime, but we also need to have the barrier 
between the aggressiveness and the public, and that barrier is the judge."

Wiretapping is the most intrusive and sophisticated investigative tool 
police have, to be used only when more conventional methods are 
exhausted. Maryland's wiretap laws, which require more judicial 
oversight and offer less flexibility than those of most other states, 
were last updated in 1988, back when having a pager was cool.

Since then, investigators say, technology and sophistication have shot 
ahead. It's not unusual for drug organizations to buy cell phones in 
bulk, making sure not to use one line for more than a few days. In one 
Baltimore case, a suspect owned about 50 cell phones.

Current law is geared more toward the phone than the suspect, requiring 
investigators to reapply for a new warrant each time they want to listen 
to a new line -- a process that means writing about 100 pages of 
affidavits explaining to a judge why the wiretap is crucial to a case.

Rewriting the warrant applica tion also slows down an investigation, 
sometimes at a crucial moment.

In July, for instance, Eric L. Buckson, 31, a now-convicted drug dealer 
serving a 40-year prison sentence, had just met with a cocaine source 
when he noticed someone following his car.

He hit a parked vehicle, then another. His car burst into flames and he 
ran away, leaving the drugs and his tapped cell phone to get drowned by 
firefighters.

To Buckson, the incident was probably a scare and a nuisance. To 
investigators it represented a significant obstacle: Within hours, 
Buckson was using a new phone, but it would take prosecutors much longer 
to apply for a new wiretap. By the end of the investigation, prosecutors 
would tap 15 different phones, creating 22,000 pages of evidence.

Maj. Anthony G. Cannavale, commander of the Baltimore Police 
Department's drug enforcement unit, said changes to the law would help 
reduce the criminals' advantage.

"It's always a game of wits with the drug dealers," he said. "We're 
really at a breakwater point, where if we don't get a handle on the 
technology, we're going to be out of business."

In the past couple of years, Baltimore has greatly expanded its use of 
wiretaps in an effort to move from street arrests of low-level drug 
pushers to kingpins with international narcotics connections. The city 
Police Department and State's Attorney's Office have created special 
"technology" units, and they perform more wiretap investigations than 
any other jurisdiction in Maryland.

Though wiretaps consume enormous amounts of time and money, their 
success is undeniable, as compiled in a recent report prepared by 
Jessamy's office: In the past two years, wiretaps have led to the 
dismantling of nine drug organizations -- a total of 118 defendants with 
links to Colombia and the Dominican Republic, and the seizure of nearly 
$800,000, 66 cars, 84 guns, 14 kilos of heroin and 10.5 kilos of cocaine.

But criminals are becoming more savvy about wiretaps, thanks in part to 
the recent investigations.

Cannavale said his officers have found wiretap affidavits, which include 
extensive surveillance details, when doing searches in drug dealers' 
houses -- documents probably provided by their lawyers.

In wiretap transcripts, defendants routinely talk about ditching phones 
and getting new ones. They give out numbers of unregistered phones, and 
even discuss the possibility their phones are tapped.

Cannavale described the ingenious ways criminals avoid surveillance. 
They get friends to set up phony companies, ordering a block of cell 
phones with similar numbers. They pay the first bill, then run up the 
next bill to thousands of dollars before tossing out the phones -- a 
practice called "busting."

They also buy what they call "burners," phones with pre-paid minutes 
that anyone can buy cheaply, without credit, at Kmart or 7-Eleven. When 
the minutes are up, they throw away the phone and buy another.

Drug dealers can even create phantom phones, Cannavale said. Someone 
working inside a wireless company will digitally program a phone on the 
company network without registering the number, making it impossible to 
track.

These methods are so common, said Frank C. Meyer, chief of 
investigations for the Baltimore County State's Attorney's Office, that 
"if they're not doing it, they're not worth looking at."

And then there's the technology that's difficult to tap, such as the 
"walkie-talkie" feature on Nextel phones, and E-pagers, which allow 
people to send text messages between pagers.

"It's almost like how having a car revolutionized the way people got 
around," Cannavale said, sighing at the possibility that satellite 
phones would be next.

Changes to the law proposed by Jill Myers, chief of the wiretap unit in 
Jessamy's office, would allow investigators to apply for a "roving" 
wiretap for suspects they know will use more than one phone -- a 
practice allowed federally and in some states.

Sullivan said he was "almost sure" the ACLU would fight such a change in 
Annapolis. He worries about potential police abuses, and that more 
innocent conversations will be recorded than necessary.

If a suspect has 50 cell phones, "then get 50 search warrants," Sullivan 
said. "We're familiar with 'mission creep' in the military. Well, 
there's a bit of this 'technology creep' in the law enforcement context."

Other proposed changes include extending the deadline for when 
investigators have to tell a person that he or she has been the subject 
of a wiretap. Current law allows a maximum of 180 days, but Myers says 
that's often not enough time to complete a case, since surveil lance 
ends once a suspect is notified.

Myers also wants to allow a single judge to have jurisdiction over all 
the wiretaps in a case, regardless of where the suspect goes within the 
state. Existing law gives circuit judges control over wiretaps only in 
their counties.

Sullivan said the latter proposal could encourage "judge shopping." M. 
Albert Figinski, a defense attorney and lobbyist who helped write the 
federal and state wiretap laws, agreed. He called the notification and 
jurisdiction suggestions "absolutely repulsive."

"That's way beyond what they need," he shouted, adding that he would 
personally testify against those ideas.

Baltimore Circuit Judge John N. Prevas, who has handled many wiretap 
cases, also opposes extending deadlines for when investigators must 
notify suspects. Although some cases might be hurt by the limits, he 
said, "giving the power to hide things for too long is not healthy."

Other suggested changes are more technical, such as giving detectives 
the authority to order computer companies to preserve e-mails as 
evidence. America Online, for instance, deletes e-mails from its servers 
two days after they are read, and preserves them for 28 days if unread.

In addition, Myers seeks to expand the list of 17 crimes, from murder to 
gambling, for which a wiretap can be granted, to include terrorism, 
harboring terrorism, and money laundering of narcotics proceeds and 
terrorist-related activities. Separate legislation already has been 
proposed to add offenses committed by "an interna tional terrorist 
organization" to the state wiretap law.

Jessamy and other Maryland prosecutors say whatever wiretap legislation 
they end up backing during the legislative session will not be as 
invasive as the new, expanded federal law regarding wiretap use, which 
was aimed at terrorists.

Dubbed the "Patriot Act," it allows investigators to track e-mails and 
Internet connections without a warrant. That legislation passed in 
October amid protest from civil liberties groups.

"We are in the business of attempting to dismantle major drug 
organizations," Jessamy said. "We value civil liberties. We will do 
everything by the book."

Some defense attorneys said the proposed changes, which do not 
drastically reduce the court's control of wiretaps, sound reasonable.

Robert C. Bonsib, a private defense attorney and former prosecutor in 
Prince George's County who helped write the current wiretap law and has 
lectured about it, said only the addition of "terrorism" worried him 
because the definition of such activity is unclear.

As for the "roving" wiretap provision, he said, as long as it's used 
carefully, "That by itself doesn't give me any great heartburn."

Copyright © 2002, The Baltimore Sun <http://www.sunspot.net>



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